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  • he Wall and International

    Humanitarian and Human

    Rights Law

    IntroductionIn June 2002, Israeli military forces began the construction of a people separation barrier in the Occupied West Bank. According to the Israeli Occupation Forces (IOF), the so-called security Wall is a military necessity and a security measure for the defense of Israel: its official aim is to ensure the safety of Israeli citizens living within the Green Line and settlers in the OPTs, by controlling the movement of Palestinians into Israel and Israeli settlements.

    Jerusalem Center for Human Rights

  • The Wall will negatively impact on the lives of thousands of Palestinians. The route of the Wall, the so-called security barrier, is allegedly determined by security needs based on the topography of the land, with efforts purportedly made to reduce the harm on individual land owners when possible. In point of fact, however, there are clear political and demographic objectives that govern the location and manner of construction as well as eventual impact of the Wall.

    Perhaps the most serious effect of the construction of the Wall is the massive destruction of Palestinian property that it entails,1 and the effective annexation of the Palestinian land lying to the west of the Wall to Israel.

    Consisting of alternate stretches of walls, fences and other obstructions such as trenches and barbed wire, which are easily movable, the final route of the Wall is intended to divide the entire West Bank from Israel and settlements within the West Bank, in a manner not dissimilar to the fence that encircles the Gaza Strip. Yet in reality, the Wall does not follow the route of the Green Line that demarcates the Israeli border with the West Bank but, rather, lies in its entirety inside the West Bank, winding its way through the occupied territory, isolating many thousands of Palestinians from their lands and thousands of others from the rest of the West Bank.

    Therefore, the major violation of international law, is the unilateral demarcation of a new border with the West Bank and, thereby, and the effective annexation of occupied land, which is illegal under the laws of war.

    The Wall, as well as the occupation itself in its wider context, compromises a wide collection of violations of human rights and international law. Violations include the principle of collective punishment, the seizing of private property by an occupying power, demolition of houses to build the wall, the violation of such basic human rights as the right of work and freedom of movement, and the separation of people from their families, and other violations of basic human rights.

    The various violations of international law are a logical and predictable continuation of the violation of international agreements the 1947 UN partition plan for Palestine that led to the foundation of Israel in 1948, and the annexation of Jerusalem. Indeed, the actual effect of the Wall is to ensure that further tracts of Palestinian territories are de facto annexed to Israel, and to diminish even further the possibility of creation of an independent and sovereign

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  • The Wall and International Humanitarian and Human Rights Law

  • Palestinian state in the West Bank and Gaza, through creating facts on the ground that prevents any possibility of Palestinian territorial contiguity. The huge scale and the permanent nature of the wall constitute a grievous attack on the right of the Palestinian people to self-determination. The creation of the Wall is also the culmination of a separation policy that is racist in its origin, and is intended to establish a communal and political pattern of domination of the area in the interest of Jewish settlers, and at the expense of its indigenous population. This policy is even more insidious than the apartheid policy attempted in South Africa, which was roundly condemned and eventually abandoned as racist and unjust.

    It must be understood that the system of Israeli occupation culminating in the Separation Wall constitutes more than the sum of violations it encompasses but proceeds to solidify in law and on the ground a system as oppressive, unjust and racist as it is illegal. It is important to keep this in mind even as we enumerate the specific instances of violations entailed by the construction and operation of the Wall.

    This paper will examine whether the construction of the Wall in the Occupied West Bank is consistent with Israels obligations as an Occupying Power towards the protected persons, namely the Palestinian population of the West Bank and Gaza, under its control since the 1967 occupation. It will detail the international law, humanitarian and human rights law, applicable to Israel as the occupying power. Furthermore, the paper will examine Israels rights and duties, under international humanitarian law, towards the property of the occupied persons, and if the wall can be considered a real military necessity for Israel and not just a disruptive political move.

    Since the Occupied Territories have never been formally annexed by the state of Israel (except East Jerusalem), the laws applicable in those areas at the time of occupation remain in effect. Since the IOF maintains control of these areas, laws in effect are changed through military orders. From the beginning of the occupation in 1967, the IOF amended many of the Jordanian and Ottoman laws pertaining to property rights through military orders. These changes have allowed for the transfer of large amounts of land to state ownership, with limited protections and remedies available to land owners. Although the requisitioning of property was normally done on a temporary basis, much of the confiscated property has been transferred to Jewish settlements or used for the construction of by-pass roads serving Jewish settlers exclusively, which has led to a de facto expropriation of the property in violation of international law.

    Legal Situation in the Occupied TerritoriesLegal Situation in the Occupied Territories

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  • International humanitarian law is composed of the Hague Convention of 1907 (Hague Regulations) and the Geneva Conventions of 1949 and its Protocols. Together these conventions govern conduct during armed conflict. Particularly important are the provisions concerning administration of occupied territories and treatment of civilians.

    Specifically, the Hague Regulations forbid expropriation of property belonging to residents of occupied territory, oblige the occupying state to ensure public order and safety, and prohibit collective punishment.2 The Fourth Geneva Convention provides protection for civilians during conflict. In particular, it prohibits violent acts against residents of occupied territories, injuring the dignity of civilians, and acts of retribution and collective punishment, as well as protection of private property.3 Derogations from these conventions due to emergency situations are not acceptable since, by nature, the conventions were drafted specifically to apply in emergency situations, unlike other human rights conventions.

    The Israeli Supreme Court has accepted the 1907 Hague Regulations as being part of customary international law enforceable in Israeli courts.4 It has argued, however, that it cannot apply international treaties until the Knesset enacts legislation incorporating the treaty into domestic legislation. However, customary international law, unlike treaty-based law, is binding on all states regardless as to whether they ratified treaties, because the principles of such law reflect the accepted status of certain practices maintained by the majority of States.

    The Supreme Court has agreed the Hague Regulations apply in the Occupied Territories under their status as customary international law and has reviewed state action in the Occupied Territories pursuant to its provisions. In particular, Israeli authorities have based requisitions of property on a provision of the Hague Regulations which allow an occupying power to seize private property for military needs in time of war.5

    As to the IV Geneva Convention, the Israeli Governments official position is that it is not fully applicable in the Occupied Territories, despite the fact it was signed and ratified by Israel. This opinion is based on the theory that the annexation of the West Bank and Gaza Strip by Jordan and Egypt was never recognized internationally; so there was no legitimate ousted sovereign.6

    The claim of non-applicability of the Convention to the Occupied Palestinian Territories has been rejected by the International Committee of the Red Cross (ICRC), as well as by Israeli and other experts in International law. The ICRC has argued that the Geneva Convention is not concerned with the sovereignty of parties to a conflict. The Geneva Convention applies to all cases in which territory is occupied in the course of an armed conflict, irrespective of the status of that territory.7

    In 1990, the United Nations Security Council passed Resolution 681 that called on the Israeli government to accept the de jure application of the Fourth Geneva Convention to the occupied territories. In 2001, the UN General Assembly in Resolution 56/60 reaffirmed that

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    The Wall and International Humanitarian and Human Rights Law

  • the IV Geneva Convention is applicable to the Occupied Palestinian Territories, including Jerusalem and other Arab territories occupied by Israel since 1967.

    In December 2001, the High Contracting Parties to the Geneva Conventions reaffirmed that the Convention is applicable to the Occupied Territor

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